What's so sinister about presidential signing statements?

Author:Ostrander, Ian
Position:Essay
 
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In 1830, Andrew Jackson signed into law an appropriations bill that, among other things, provided funds to construct a road from Detroit to Chicago. After signing the bill into law, Jackson wrote a special message to Congress indicating that he had signed the bill with the understanding that the authorized road was not to extend beyond the Michigan Territory (Jackson 1830). Jackson's actions outraged members of Congress and prompted the House of Representatives to issue a report rebuking Jackson's actions and declaring that his message in effect constituted a line item veto (Halstead 2007).

This episode marked one of the early instances in which a president formally issued a statement outlining an interpretation of a newly enacted law. Over time, this practice has been institutionalized in the form of presidential signing statements (Conley 2011), written comments delivered when a president signs a bill into law. These statements span the spectrum from innocuous rhetorical messages used to praise allies to pointed messages that offer the president's interpretation of certain statutory provisions. While signing statements have been used since the early 1800s, they did not receive consistent attention in political science until the George W. Bush administration. Since then both academic (Cooper 2005) and media (Savage 2006, 2007) sources have adopted a position consistent with the House of Representatives' 1830 report and likened signing statements to a line-item veto and a general abuse of presidential power. The American Bar Association (2006) went a step further and argued that signing statements pose a "serious threat to the rule of law" (20).

Signing statements exist in an ambiguous and murky world alongside the many modern presidential tools that are neither expressly mentioned in nor prohibited under the Constitution.1 This ambiguity has understandably led to the question of what precisely signing statements are and what presidents intend to accomplish through their issuance. The initial scholarly accounts have largely portrayed signing statements as the newest unilateral policy tool employed by recent presidents (Cooper 2005; Kelley and Marshall 2008, 2009, 2010; Pfiffner 2008). Within this framework, signing statements give presidents a last mover advantage (Kelley and Marshall 2008, 2009), which can circumvent congressional law-making authority by nullifying select statutory provisions. This power has been compared to a royal prerogative (May 1998).

But are signing statements so sinister? While some statements may be directed toward changing the outcome of a law, there has been little to no systematic evidence to demonstrate that signing statements alter the implementation of public laws (Halstead 2007, 2008a; Kepplinger 2007a, 2007b, 2008). (2) Furthermore, an examination of the rhetorical content in signing statements indicates that many of these statements, even those raising constitutional questions, cannot be construed as intending any policy change. In these cases, signing statements appear to be institutionally oriented and do not appear to be used to make specific policy gains. Rather these statements are directed at reiterating the boundaries between Congress and the president. Additionally, statements of administration policy (SAP), which are issued during the legislative process and at times outline a president's constitutional concerns, have been found to precede many constitutional signing statements (Ainsworth et al. 2011; Rice 2010).

We suggest that the popular framework of unilateral action is an inappropriate perspective for understanding presidential signing statements. Instead, we posit that signing statements function as an opportunity for presidents to speak with Congress about specific provisions of a bill or larger interbranch issues. In doing so, the president is able to note concerns about policy, ambiguity, and the constitutionality of provisions, as well as offer praise for specific legislative accomplishments or congressional cooperation. In this sense, presidential signing statements may function more like a continuation of a dialogue between the two branches than a unilateral power (Korzi 2011). This theoretical approach has the advantage of using a single framework to discuss a broader range of presidential signing statements as well as linking these statements with other forms of presidential communication.

In support of our theoretical approach, we present the empirical results of a detailed content analysis of over 1,200 signing statements from the Carter to Obama administration. The content analysis demonstrates that the substance of most signing statements is far more benign than previously thought. Our analysis indicates that most constitutional objections raised in signing statements are related to larger issues of executive powers in relation to Congress rather than policy concerns. Furthermore, we find that in the majority of cases the president actually holds a favorable view of the legislation in question. We also provide evidence that the content of signing statements often appears earlier in the legislative process via SAPs, which suggests signing statements are neither unique nor necessarily unexpected.

Our findings suggest that we must recharacterize our understanding of presidential signing statements that raise constitutional concerns. Rather than viewing them only as a unilateral tool used to shape the policy implications of a single law, signing statements can be seen as facilitating a dialogue between the president and Congress regarding the breadth of each institution's powers. (3) In this regard, signing statements offer an important window into the growth of presidential power because they provide a unique view of the president's conception of the institution's power vis-a-vis Congress. (4) A dialogue framework also helps explain the empirical results showing the ebb and flow of signing statements as the relationship between the president and Congress changes over time (see Conley 2011).

The remainder of this article is laid out as follows: First, we review the basics of presidential signing statements including common typologies, their history, and finally their influence on policy. Next, we critically review the qualities of unilateral presidential action as a framework for understanding presidential signing statements. In contrast to the framework of unilateral power, we outline and defend a perspective of presidential signing statements as an instance of interbranch dialogue both theoretically and using content analysis of over 1,200 signing statements from the Carter to Obama administrations.

Presidential Signing Statements

Signing statements are often divided into types based on the content and arguments made within each statement. First, many signing statements are purely credit claiming or centered on delivering praise to those who helped enact a law. These signing statements are often referred to as "rhetorical." Second, signing statements that make a constitutional argument or reinterpret the nature of a law are often referred to as "constitutional" statements. This basic typology, constitutional and rhetorical, is well developed in the work of Kelley and Marshall (2008, 2009) and can be found in other studies (Berry 2009; Ostrander and Sievert n.d.; Whitford 2012).

While the typology is useful to researchers, it is important to note that these categories are somewhat artificial. They are not mutually exclusive as it is common to find elements of each type within a single signing statement. It is not the case that presidents decide whether to issue a constitutional versus a rhetorical signing statement; rather, presidents simply provide their reactions to legislation. Placing signing statements into categories, however, provides researchers with an easy way to describe the uses of signing statements over time.

A History of Signing Statements

Presidents have used signing statements since the early 1800s to editorialize and provide their interpretation of legislation (Halstead 2007, 3). While George W. Bush has been criticized for his use of constitutional signing statements, no epoch of presidential signing statements has been strictly rhetorical. With a few notable exceptions, however, signing statements were few in number and mostly rhetorical throughout the remainder of the nineteenth and early twentieth century.

The start of the modern presidency marked an important shift in the use and frequency of presidential signing statements. Halstead (2008a, 565) notes that Harry Truman began the first systematic use of signing statements with a relatively low number issued--about 16 per year. According to Conley (2011, 560), Truman used "critical signing statements to target his arch nemesis, the Republican Congress" on legislation pertaining to the budget. After Truman, presidents continued to issue a steady stream of signing statements with each president building upon the precedents set by prior administrations' use of signing statements (Conley 2011). The next big change came during the post-Watergate congressional resurgence (see Figure 1, first vertical line), with both Gerald Ford and Jimmy Carter resorting to using the signing statement to protect presidential authority (Kelley 2007; Kelley and Marshall 2008; Rudalevige 2005).

While both Presidents Ford and Carter began issuing more signing statements, most scholars attributed the institutionalization of the signing statement to the Regan administration (Cooper 2005; Kelley and Marshall 2008). The institutionalization of signing statements is often traced back to the efforts of then Attorney General Edwin Meese III (Cooper 2005) and is documented in a 1986 memo by then Assistant Deputy Attorney General Samuel Alito, which argued for the inclusion of signing statements in the weekly compilation of presidential documents (Alito 1986). Alito also argued that these...

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